(1 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-1, Page 1 of 6 No. 18-17046 In the United States Court of Appeals for the Ninth Circuit LIONS CLUB OF ALBANY, CALIFORNIA, Plaintiff-Counter-Defendant-Appellee, v. CITY OF ALBANY; ROCHELLE NASON, Defendants-Counter-Claimants-Appellants, v. THE ALBANY LIONS CLUB FOUNDATION, Counter-Defendant-Appellee. _______________________________________ Appeal from the United States District Court for the Northern District of California, San Francisco, No. 3:17-cv-05236-WHA. The Honorable William Alsup, Judge Presiding. MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE REVEREND KEVIN OMI IN SUPPORT OF APPELLANTS AND FOR REVERSAL ROBERT P. GREENSPOON FLACHSBART & GREENSPOON, LLC 333 N. Michigan Ave., 27th Floor Chicago, IL 60601 T: (312) 551-9500 Attorney for Amicus Curiae Reverend Kevin Omi COUNSEL PRESS ∙ (866) 703-9373 PRINTED ON RECYCLED PAPER (2 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-1, Page 2 of 6 Under Federal Rule of Appellate Procedure 29(a)(3), Reverend Kevin Omi respectfully requests leave to file the accompanying brief of amicus curiae. This motion and accompanying brief are timely filed under Federal Rule of Appellate Procedure 29(a)(6) because they are filed within seven (7) days of the Appellants’ principal brief. Under Ninth Circuit Rule 29-3, Reverend Omi states that he attempted to obtain the parties’ consent to this filing by sending inquiries to counsel of record for each party by e-mail. Appellants City of Albany and Mayor Nason consented. Appellee Albany Lions Club Foundation has not consented as of this filing. The Movant’s Interest Under Rule 29(a)(3)(A), Reverend Omi explains his interest as amicus curiae. Between 2012 and 2018, Reverend Omi was a resident of Albany, California and served as senior minister of Sycamore Congregational Church United Church of Christ (UCC) in El Cerrito, California. Reverend Omi lived one mile from Albany Hill Park, the site of the disputed cross underlying the present appeal. Reverend Omi currently serves Skyland Community Church in Los Gatos, California as their Interim Senior Minister. Reverend Omi was ordained into the UCC and serves on the Board of Directors. Reverend Omi’s statements, opinions and arguments in the brief are his own, not those of the congregations he has served or his denomination. 1 (3 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-1, Page 3 of 6 Reasons for Filing Under Rule 29(a)(3)(B), Reverend Omi explains the reason why his amicus curiae brief is desirable and why the matters asserted are relevant to the disposition of the case. The underlying appeal concerns whether an easement for the maintenance of a Latin cross on public land should be upheld (i.e., considered valid and enforceable). Respectfully, the Court will benefit from the perspective of an ordained clergy of a Christian faith. Reverend Omi’s respect for the empty cross as a powerful symbol of love, justice and hope does not cloud his awareness that its presence on public land may send messages contrary to his understanding of the teachings of Jesus. As more fully explained in the accompanying brief, Reverend Omi supports removal of the cross, with minimum burden on those serving the public to remove it. The easement creates such a burden. Reverend Omi’s brief presents the perspective of a clergy who believes that establishment of no official religion is the surest way to ensure freedom for every religion. And Reverend Omi presents a cogent explanation for why the disputed cross on public land potentially becomes a symbol of exclusion, or worse. Though Appellants ably present their reasoning about how the easement in question fails to comply with the laws, Reverend Omi refers back to the Supreme Court’s line of racially restrictive covenant cases to explain 2 (4 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-1, Page 4 of 6 why making it difficult to remove from public land any symbol of faith confounds our nation’s ideals of diversity and inclusion. Dated: February 1, 2019 /s/ Robert P. Greenspoon Robert P. Greenspoon FLACHSBART & GREENSPOON, LLC 333 N. Michigan Ave., 27th Floor Chicago, IL 60601 T: (312) 551-9500 F: (312) 551-9501 Attorney for Amicus Curiae Reverend Kevin Omi 3 (5 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-1, Page 5 of 6 CERTIFICATE OF COMPLIANCE This motion complies with the type-volume limitation of Fed.R.App.P. 27(d)(2)(A) because this motion contains 464 words, excluding the parts of the motion exempted by Fed.R.App.P. 27(a)(2)(B), 32(f) and 9th Circuit R. 27-1(1)(d). In addition, this motion complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because this motion has been prepared in a proportionately spaced typeface using Microsoft Word 2003, typeface of 14 points and type style of Times New Roman. Dated: February 1, 2019 /s/ Robert P. Greenspoon Robert P. Greenspoon FLACHSBART & GREENSPOON, LLC 333 N. Michigan Ave., 27th Floor Chicago, IL 60601 T: (312) 551-9500 F: (312) 551-9501 Attorney for Amicus Curiae Reverend Kevin Omi 4 (6 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-1, Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the Motion for Leave to File Brief of Amicus Curiae Reverend Kevin Omi in Support of Appellants and for Reversal with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 1, 2019. I certify that the participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Dated: February 1, 2019 /s/ Robert P. Greenspoon Robert P. Greenspoon FLACHSBART & GREENSPOON, LLC 333 N. Michigan Ave., 27th Floor Chicago, IL 60601 T: (312) 551-9500 F: (312) 551-9501 Attorney for Amicus Curiae Reverend Kevin Omi 5 (7 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-2, Page 1 of 11 No. 18-17046 In the United States Court of Appeals for the Ninth Circuit LIONS CLUB OF ALBANY, CALIFORNIA, Plaintiff-Counter-Defendant-Appellee, v. CITY OF ALBANY; ROCHELLE NASON, Defendants-Counter-Claimants-Appellants, v. THE ALBANY LIONS CLUB FOUNDATION, Counter-Defendant-Appellee. _______________________________________ Appeal from the United States District Court for the Northern District of California, San Francisco, No. 3:17-cv-05236-WHA. The Honorable William Alsup, Judge Presiding. BRIEF OF AMICUS CURIAE REVEREND KEVIN OMI IN SUPPORT OF APPELLANTS AND FOR REVERSAL ROBERT P. GREENSPOON FLACHSBART & GREENSPOON, LLC 333 N. Michigan Ave., 27th Floor Chicago, IL 60601 T: (312) 551-9500 Attorney for Amicus Curiae Reverend Kevin Omi COUNSEL PRESS ∙ (866) 703-9373 PRINTED ON RECYCLED PAPER (8 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-2, Page 2 of 11 TABLE OF CONTENTS Table Of Contents ............................................................................................ i Table Of Authorities ....................................................................................... ii Statement Of Interest Of Amicus Curiae And Source Of Authority To File . 1 Summary Of The Argument ........................................................................... 2 Argument ........................................................................................................ 2 Conclusion ...................................................................................................... 6 i (9 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-2, Page 3 of 11 TABLE OF AUTHORITIES Cases Barrows v. Jackson, 346 U.S. 249 (1953) ................................................................................ 4, 5 Shelley v. Kraemer, 334 U.S. 1 (1948) ........................................................................................ 4 Statutes Fair Housing Act, 42 U.S.C. § 3601 et seq. ................................................... 4 42 U.S.C. § 3604(b) ........................................................................................ 4 Rules 9th Circuit Rule 29-3 ...................................................................................... 1 Fed. R. Appellate Procedure 29 ...................................................................... 1 ii (10 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-2, Page 4 of 11 STATEMENT OF INTEREST OF AMICUS CURIAE AND SOURCE OF AUTHORITY TO FILE1 Reverend Kevin Omi submits this brief as amicus curiae. Between 2012 and 2018, Reverend Omi was a resident of Albany, California and served as senior minister of Sycamore Congregational Church United Church of Christ (UCC) in El Cerrito, California. Reverend Omi lived one mile from Albany Hill Park, the site of the disputed cross. Reverend Omi currently serves Skyland Community Church in Los Gatos, California as their Interim Senior Minister. Reverend Omi was ordained into the UCC and serves on the Board of Directors. Reverend Omi’s statements, opinions and arguments in this brief are his own, not those of the congregations he has served or his denomination. Reverend Omi sought consent of the parties to file under FRAP 29 and 9th Circuit Rule 29-3. Appellants City of Albany and Mayor Nason gave consent; Appellee Lion’s Club did not. A motion for leave accompanies this brief. Though the brief is authored with the aid of counsel, Reverend Omi wishes to present his Argument in his own voice. 1 Amicus curiae states under FRAP 29(a)(4)(E) that no party’s counsel authored this brief in whole or in part, no party or party counsel contributed money that was intended to fund preparing or submitting the brief, and no person other than amicus curiae or its counsel contributed money that was intended to fund preparing or submitting the brief. 1 (11 of 17) Case: 18-17046, 02/01/2019, ID: 11175529, DktEntry: 11-2, Page 5 of 11 SUMMARY OF THE ARGUMENT I embrace the foundational principle of our nation that states establishment of no official religion is the surest way to ensure freedom for every religion. When the good people running a city try sincerely to comply with this maxim, let no unreasonable barrier (financial or legal) stand in their way.